FEDERAL REPORTER.
enough for tbfl general use .of members. and students of ·tpeprofession. There are many things contained in the standard. works ullon these subjects which, if printed in pamphlet form anli spread broadcast among the community, being sent through themail to persons of all classes, including boys .and girls, would be highly indecent and obscene. I am not prepared to say, and it is not necessary now to decide, whether these medical books could be sent through the mails without a violation of the statute. The publications before us are not medical. It is manifest from an examination of them that they are intended to be circulated generally among the people. We decide at present nothing more than they come within the provisions of the statute, and that when deposited,in the post-office, dil'ectedto any. actual person, the law is violated, without regard to the character of the person to whom they are directed; This, perhaps, maybe shown by way of mitigation or aggravation of the offense, but not in justification. FED. REP.
See, generally, U. S. v. Kaltmeyer, 16 FED. REP. 760, and Bates v. U. S.10 92, and note.
TOWER
v.
BEMIS
& CALL
HARDWARE
& TOOL Co. and others. February 28, 1884.)
(Uircuit Court, D. 1. 2.
PATENTS-WHAT IS PATENTABLE-MERE AGGREGATION.
SAME-blPROVED MONKEy-WRENCH,
Patent 56,166, for an improvement in monkey-wrenches, cannot be held to cover every wrench in which the cam is solidly attached to the jaw, since similar arrangements were in use before the letters issued.
In Equity. D. Hall Rice, for complainant. John L. S. Roberts, for defendants. LOWELL, J. The plaintiff owns patent No. 56,166, issued to Byron Boardman,. July 10, 1866; and it is admitted that the invention was made in October, 1865. 'fhe patent is for an "improved tool," or, as the specification says, "an improved combination tool;" and "the [one] objeot of this invention is to combine a pipe-wrench with a monkey-wrench, in such manner that two of the jaws of the latter shall serve as griping-jaws for firmly holding rods or pipes of varying diameters, which it may be desirable to turn." A second and third purpose are to combine a screw-driver ,with the handle of a wrench in certain convenient modes.. Of the five claims, only two have been mentioned in this suit, and only one is said to be infringed; claim hI, as an improvement in monkey-wrenches, the combination of the cam, n, with
TOWER V. BEMlS & CALL .HARDWARE & TOOL CO.
49lt
the movable or fixed jaw-head of a so as to form thereof a pipe-wrencb, substantially as described." One Park had obtained a patent in 1865, No. 48,027, for a tool which described.and claimed "a combined hammer, claw, monkeywrench, socket.wrench, and screw-driver." Boardman's tool is (Jonfessedly and intentionally an improvement upon Park's tool. In the latter, the jaws of a monkey-wrench were placed on one side of the common handl/il, and a hammer and claw on the other side. Board· man put into. the claw of Park's hammer a serrated piece of steel, called "the cam, n," which had a rocking motion; and he made a notch in the hammer opposite the cam, and in this way the claw and hammer formed a pipe-wrench, as well as a claw and hammer. Two monkey-wrenches and two pipe-wrenches had been put upon a single handle before October, 1865, but no tool had been made with a monkey-wrench on one side and a on the other of the same handle. A monkey.wrench has its jaws alwa,ys parallel and preferably.smooth, so as .to work to the best advantage upon paral. leI-sided nuts. A pipe-wrench should have a notch or curve in one of its jaws, to embrace the pipe or rod; a serrated surface in the other, to take better hold; and this part should have a rooking motion, so that the grip of the wrench can be loosed by merely reversing the handle. The plaintiff oontl;lnds that Boardman's pipe-wrench, considered by would itself, was .the first which had the cam so placed that .the come upon a solid jaw. The old form of this kind of tool, of which the defendants made. about one hundred dozen it year, for six or seven yeal's before 1866, was that patented by Bartholemew & Merrick, in 1849, No. 6,002, In this tool, which was an hnprovement upon one patented bj' Merrick in 1848, the upper jaw was curved or notched, to embrace the rod or pipe, apd the lower jaw was serrated and had a rocking motion by being pivoted atits lower end, immediately above the nut, which actuates the movable jaw. The cam was solid with the jaw, but the plaintiff insists that too great strain eame.upon the pivot. There is no evidence in .the record that the Bartl:.tolemew & Merrick wrench ever broke at, the pivot, and the Exhibit 1, which represents it, appears to be strong; but the wrenches in litigation here are still stronger. Amos Call, a member of the defendant corporation, obtained a patent in 1866, No. 57,621, for an improvedpipe-wrencb, which, in is the Bartholemew & Merrick tool, with the. addition that the rooking jaw is loosely oonfined by two collars. The invention was made later than Boardman's. 'The special advantages of this tool not explained, but it is obvious thlj.t. the cqUars prevent the rocking-jaw from rocking too far, and if .t,here was danger of its breaking at the pivot, it overcomes this difficulty;.by bringing the strain,after the rocking has gone far enough, upon the oollars, and through the Qollar.s upon the handle of the tool. Since tp.is invented
500
fEDERAL REPOBTE& .
the defendants have sold it instead of the other form. This tool is admitted not to infringe the patent in suit. The defendants likewise make and sell a tool which unites upon a single handle the jaws of a monkey-wrench on one side, and the jaws of the Call pipe-wrench on the other. The question is wh6ther this tool infringes the first claim of the patent. The primary examiner rejected Boardman's application, saying: "The tool, as described and shown, is an aggregation of four distinct tools, answering to four different purposes, some widely dissimilar, and others analogous, but in no plirticular does anyone of these tools add any value to either of the others, or co-operate therein to effect a common purpose, and hence no combinable relationship exists between them. That the. aggregation of these several tools in the manner shown results in a convenient article, is not questioned, and, as an article of manufacture, the tool so resulting may possess patentable novelty," etc. The examiners in chief reversed this decision. Since 1866 the supreme court have decided that there is no patentable combination, properly so-called, in an aggregation of devices which have no common purpose or effect, concurrent or successive-. Hailes v. Yan Wormer,20 Wall. 353; Reckendorfer v. Faber, 92 U. S. 347; Pickering v. McCullough, 104 U. S. 310; Packing Co. Cases, 105 U. S. 566. Applying the rule of those cases to the facts of this, they decide that a broad claim cannot be sustained for merely putting together two old tools for convenience of manipulation in their several and wholly distinct uses; but that the patent must be limited to some patentable improvement, either in the method of combining the tools, or in one or more of the tools themselves. No invention is claimed which relates to the mode of combination; but the pipewrench itself is said to be an improvement on all which preceded it. The cam, n, is specifically claimed in the second claim thus: "The manner herein described of securing the pipe-wrench cam within a recess, so that this cam will be firmly sustained by the solid metal surrounding it, during the operation of turning a cylindrical object, and allowed to play loosely when released, substantially as described." It is not contended that the second claim is infringed. and if it claims,the cam, n, as broadly as the invention will permit, the first claim is not infringed, which is for the combination of the cam, n, with one of the jaw-heads of a monkey-wrench. The defendant's cam, or rocking serrated jaw, is like the old jaw of the Bartholemew & Merrick wrench, and not at all, in appearanoe, at least, like a cam rockilig in a recess. It has solidity, to be sure, but this is not obtained by affixing it any more firmly to the jaw than it was in Bartholemew & Merrick's, where it was a part of the jaw itself, but in put. ting a collar round that jaw, which prevents its rocking so far as to brings dangerous strain upon the pivot. There were several kinds of cams in use in pipe-wrenches before 1866, one of which is in the wrench patented to Phillips in 1859, No. 23.857. In this wrench the serratsd cam had a sliding motion
PENTLARGE
V.
KIRBY.
501
upon the solid lower jaw of a pipe-wrench. The plaintiff's expert says that this wrench must have been of no practical value, because the sliding cam has not the rocking or toggle motion necessary to reo lease the pipe readily from the grip of the jaws when the handle is reversed. This criticism is undoubtedly sound in assuming that a rocking motion is preferable to a sliding one. It was, however, demo onstrated at the hearing that Phillips' tool will work to some consid· erable extent. Whether it was a commercial success, I do not know. There is no evidence about it, excepting that it was patented and was made. Considering the existence of the tools which I have men· tioned, and of many others having several different sorts of cams, I am of opinion that the plaintiff cannot claim every cam which is solidly attached to the jaw, or jaw-head, and, specifically, that he cannot claim the cam which the defendant uses, which is the Bal'· tholemew & Merrick rocking jaw, made more convenient and secure by two collars which play upon the handle. It was not a known sub· stitute for cam, n, because the collars were new. It follows that the pipe-wrench of the defendants is different from that of the plaintiff; and since the broad claim of aggregating any pipe-wrench with any monkey-wrench upon a single handle cannot be sustained, I do not see, as I have already said, that a wider mean· ing can be given to cam, n, in the first claim, than if the patent was for the pipe-wrench alone. There is therefore no infringement. Bill dismissed, with costs.
PENTLARGE v. KIRBY.
(Three Cases.)
PENTLARGE, for Himself, and the United States, v. KIBBY BUNG MANUF'G Co. (Three Cases.) (District Court, 8. D. New York. .January 31, 1884.) 1. PATENTS-FALSE STAMPING-REV.
Section 4901, Rev. St., imposing a penalty for false marking upon articles the word" patented" with intent to deceiv.e the public, as a penal statute, is to be strictly construed, It makes penal only the act of stamping. Taking the stamped articles into another district with the intent to sell them is neither prOhibited nor made penal, and cannot be construed, as in cases of larceny, as a repetition or continuance of the act of stamping in the district to which the articles are removed. SAME-8TATUTE CREATING NEW OFFENSE-CONSTRUCTION.
ST. §§ 4901,
732-PENALTY.
2,
Where a statute creates a new offense and at the same time prescribes 8 particular and limited remedy, all different or other remedies than those prescribed are to be deemed excluded. As section 4901 declares that the penaltv is " to be recovered by su,it in any district of the United States within whose'jurisdiction such offen.semay have been committed," held that no suit for such penalty. can be maintained except
3.' SAME-RECOVERY OF PENALTY-ACTION, WH:ElRE BROUGHT·
.'
